Nov 01

Uber London Limited and others -v- Aslam, Farrar and others (2202550/2105)

Posted by gowenstevensadmin on Tuesday 1st November 2016

Many of you may know someone who works, on the face of it, on a self-employed basis. You may even do so yourself. In the modern world of communications it is inevitable that some businesses will seek to adopt models in which their operatives work as independent contractors outside the strictures imposed on them by the Employer/Employee relationship, thus avoiding irritants such as payment of tax at source, employer’s National Insurance contributions, national minimum wage, holidays and working time regulations.

Each arrangement of this nature needs analysis to determine whether, on balance, it is of genuine self-employment or is more characteristic of an employment relationship.

Of course, many such arrangements are perfectly genuine. The recently reported case of Uber London Limited and others v Aslam, Farrar and others (2202550/2105) on 28 October 2016, which received much publicity in the Press, is an example of one that is not (subject to appeal).

The decision of the Employment Tribunals is on a preliminary point. The principal question was whether the Uber drivers were “workers” for the purposes of the regulations on working time and the national minimum wage. Uber, having lost, has already said that it intends to appeal, but, bizarrely, is at the same time claiming to its remaining drivers that it only affects the two named Claimants. This is logically untenable for the following principal reasons:

  1. It is clear from the Judgment that the named drivers were only “test” cases; and
  2. If it does only affect two drivers, why appeal – unless you know what the implications are?

Logic, indeed, does not seem to be Uber’s strong point. It sought to argue that it was really a technology company that had developed an App that enabled its drivers to earn a living.

The reality was somewhat different. The Tribunal pointed out that if there was no contract for the provision of driver services as between the drivers and Uber, necessarily there must be one between the driver and his passenger – someone the driver has not met, whose identity is unknown (apart from a Christian name), for an unknown journey before they meet by a pre-programmed route departed from at one’s financial peril, for a fee set, and paid, by a stranger (Uber) which cannot be negotiated upwards. Further, if this were so, any rights the driver might have would be against the passenger, including if Uber went into liquidation. This was manifestly absurd.

The Tribunal listed exhaustively in paragraph 92 of the judgment the considerable degree of control Uber exercised over the drivers, and noted the variance between its legal documentation and the somewhat unguarded evidence it gave to, for instance, the GLA Transport Scrutiny Committee on 2014. It concluded that the legal paperwork was “couched in impenetrable prose” that tried to disguise, through “fictions, twisted language, and even brand new terminology”, the true relationship between Uber and its drivers. It didn’t help that Uber’s main witness, one Joanna Bertram, was described as “grimly loyal” and was noted for her “ambitious attempts” dismiss the GLA evidence as “a typographical error”. Sometimes judicial sideswipes are precious.

Employment Judge Snelson delivered the judgment. It is clear that he knew an appeal was inevitable – that much was obvious. He took great care. His analysis is difficult to fault.

Quite where this leaves us is not as yet clear. Yes, the Uber drivers who claimed may have gained short term rights, but these are not necessarily valuable to all. Many like the flexibility involved in working “for” (or “with”) Uber. However, with other cases now in possible preparation from the likes of cycle couriers and delivery drivers, a fresh look at the GIG economy may be needed.

Paul Edmunds

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